ronald wilson v. city of san buenaventura

123

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SUPERIOR COURT OF CALIFORNIA,

MINUTE ORDER

TIME: 05:05:00 PM Judicial Officer Presiding: Barbara A. Lane

COUNTY OF VENTURA SIMI VALLEY

DATE: 05/25/2011 DEPT: S5

CLERK: Sandy McCartyREPORTER/ERM:

CASE NO: 56-2007-00308930-CU-PO-VTACASE TITLE: Wilson vs. City of San BuenaventuraCASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Other

EVENT TYPE: Ruling on Submitted Matter

STOLOAPPEARANCES STOLO

StoloThe Court, having previously taken the Request for Injunctive Relief under submission, now rules asfollows:

DECISION AFTER A COURT TRIAL (ON INJUNCTIVE RELIEF ISSUES)

Ronald Wilson v. City of San Buenaventura (case no. 56-2007-00308930) was tried to a jury on 4/7/09though 5/6/09 and resulted in a jury's returning a damages verdict for Mr. Wilson on his claim ofnuisance. Mr. Wilson was represented by Kate M. Neiswender. The City was represented by RickHardin and Lora D. Brown of Coffin & Hardin.

The present Ventura Citizens for a Safer Beach v. City of San Buenaventura injunctive relief case (caseno. 56-2007-00308930) was tried to the Court, concurrently with the jury's hearing the Ronald Wilsoncase and thereafter, during the week of 5/13/09. By stipulation, a decision on the injunctive relief claimswas deferred while counsel engaged in settlement efforts. When those efforts (to establish a specialassessment district with the City) could not be successfully concluded, additional testimony andarguments were presented by the plaintiffs and the City of San Buenaventura ("City") to the same trialjudge on 12/3/10 and 3/7/11.

In this action for injunctive relief, plaintiffs Ronald Wilson, B.J. Hansen, Myron and Stephanie Roth,Elizabeth Bauer and William Puchlevic are represented by Kate Neiswender; and plaintiffs VenturaCitizens for a Safer Beach ("VCSB"), Rosemary Icardo, West Coast Winery, Inc. (Gloria Lemer) and DanScully are represented by James Q. McDermott. The defendant City of San Buenaventura isrepresented in this phase of the lawsuit by Assistant Ventura City Attorney Andy H. Viets.

The Court makes findings of fact and draws conclusions of law as follows. To the extent that these

MINUTE ORDER DATE: 05/25/2011 DEPT: S5 Calendar No.

CASE TITLE: Wilson vs. City of San Buenaventura CASE NO: 56-2007-00308930-CU-PO-VTA

determinations differ from a party's position, that is the result of the Court's evaluation of credibility andrelevance, burden of proof considerations and weighing of the evidence, both documentary andtestimonial.

The VCSB plaintiffs are Pierpont Beach residents. The Pierpont Beach area that adjoins the plaintiffs'residences is zoned as a public park; and has been used for that purpose for more than 60 years. ThePierpont Bay subdivision includes three streets: Seaward Avenue, Pierpont Boulevard and Shore Drive.Seaward Avenue intersects the other two streets and runs perpendicular to the ocean, as do 27 small,residential streets with "lane ends," that dead-end into it (Exh. 78, the Ventura County Assessor's Mapfor the Pierpont Bay Subdivision). The northernmost lane is San Pedro Street and Marina Park demarksthe border of this Pierpont Beach area to the south.

The VCSB plaintiffs complain that massive sand drift problems arose after 1999, when the City of SanBuenaventura ceased maintaining the Shore Drive area it owns in front of their homes. They contendthat the sand has massed into huge mounds that tower over their homes, has cracked their retainingwalls and foundations, and denies them the use and enjoyment of their property. The VCSB plaintiffsalso complain that sand has overcome the walls at the end of the Pierpont lane ends, eclipsing cementstairs which lead to the beach with sand and making access difficult.

The City Owns Shore Drive, A Public Street Covered by Beach Sand

The Pierpont Bay Subdivision was established in 1926. Over the decades, many man-mademodifications were made in the area. The Ventura pier was built in 1929. The Army Corps of Engineersdredged and widened the beach and constructed the Ventura harbor. In the 1960's, large rock groinswere installed offshore and jetties were built. In the 1970's, the City built retaining walls and installedunderground utilities, pump stations and drains on its Shore Drive property (Exhs. 57 and 58).

Shore Drive runs the length of the beach and is situated between the State-owned beach on the oceanside and the plaintiffs' beachfront properties and the lane ends to the east. Testimony from RonaldWilson, Rosemary Icardo, and Mike Biedebach established that, to this day, Shore Drive is shown onmaps as a 40-foot wide street paralleling the Pacific Ocean coast for about a mile.

The evidence established that all of the streets within the Pierpont subdivision, including Shore Drive,were formally dedicated to the County of Ventura at the time the Pierpont subdivision was approved andthe County accepted the dedication. The streets including Shore Drive were all accepted into the City ofSan Buenaventura's street system at the time of annexation. Shore Drive is intersected by lanes; andhad "courts" or alleyways between the houses for pedestrian traffic. In 1973, by a Resolution of the CityCouncil, the City of San Buenaventura abandoned the courts, which reverted to the adjoining feeowners. The City has never, however, abandoned the lanes or Shore Drive.

The testimony of lifelong residents at Pierpont Beach, including plaintiff Elizabeth Bauer and witnessesLarry Pearson and Melvyn Henkin, was that the asphalt of Shore Drive has eroded away over the yearsand is now covered with large amounts of beach sand. Mr. Pearson's family photographs show thePierpont area in the 1930s and the erosion of the Shore Drive asphalt after severe storms in 1936 and1937. (Exhs. 5a and 12.) Based on this, the City maintained throughout the Wilson trial that it has noresponsibility to maintain Shore Drive because it has become "a beach," not a street.

The evidence refuted that argument. After the asphalt broke away, the City continued to control andmaintain Shore Drive as a pedestrian right-of-way. E-mails of City employee Frank Maxim came into



evidence, which characterized Shore Drive as a "street" that was closed to vehicular traffic by action ofthe City Council (Exhs. 66 and 67). A letter written by the City's longtime (since 1983) Director of PublicWorks, Ronald Caulkins, to the Coastal Commission discussed the City's need to maintain Shore Drivefor public access to the beach (Exh. 63). Both Mr. Caulkins and Jack Ainsworth of the CoastalCommission acknowledged in their testimony at the 4/09 Wilson trial that the City's own "Local CoastalPlan" designated Shore Drive as a pedestrian accessway.

The City sent notices to the adjoining neighbors of its continuing supervision of Shore Drive. Forexample, local resident Staci Kaye-Carr testified at the (4/09) Wilson trial that she received a 9/7/99letter from the City, announcing its project to maintain the "public right-of-way of Shore Drive at theterminus of the lanes" (Exh. 75).

The evidence also showed that the City had substantial involvement in building improvements on andunder Shore Drive. The testimony of Larry Pearson, who played in the Shore Drive area every day as aboy – and still lives at Pierpont -- and of Ronald Wilson, established that, over the years, they saw City ofSan Buenaventura workers construct utility and storm drain improvements underneath Shore Drive; andbuild the retaining walls and pump stations near the lane ends.

The City's Public Works Director Mr. Caulkins admitted under cross-examination at the Wilson trial thatpump stations were installed on Shore Drive, including on Weymouth Lane (photographic Exh. 80). Mr.Caulkins further admitted that the pump stations on Shore Drive are shown on the City's as-builtdrawings (e.g.at the end of Dover Lane, Exh. 57); and that the City's as-built drawings document theretaining walls it had built at the ends of each lane (see e.g. Exh. 68).

Once accepted by a municipality, a street becomes a public improvement and part of its system of publicworks. (See Gov. Code §66477.1; and McKinney v. Ruderman (1962) 203 Cal. App.2d 109). Where, ashere, a street has been accepted into that system, improved by the installation of utilities and drainage,and maintained, the municipality may be held legally responsible where the city's acts or failure to actwith respect to its property interferes with the adjoining property owners' use and enjoyment of their land.(See Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720).

The Actions/Authority of the Coastal Commission are Irrelevant to the Inquiry Here

The City blames the California Coastal Commission for the Pierpont Beach residents' sand woes. TheCity's attorney calls the Coastal Commission the "elephant in the room"; and points out that the CoastalCommission, created by voter initiative in 1972, effectively controls the issuance of permits for sandmaintenance; and is beyond the City's or any individual's control.

The City contends that it was the Coastal Commission which appealed (and thus derailed) the sandclean-up permits the City issued to itself in 1999 for maintenance of the subject beach area; and it wasthe Coastal Commission that threatened to appeal the limited sand removal permits the City contends itassisted several Pierpont plaintiffs in securing, including Ms. Icardo and the Roths. The City also pointsto the fact that the high expense of sand removal is the result of Coastal Commission directives toprotect the sand ecosystem and an endangered tailless lizard, including retaining a biologist and payingfor environmental studies to be done.

The plaintiffs respond that when they have sought permits from the City, it has taken months to securethem; the permits only allow the homeowners to remove the sand by hand (no mechanized equipment),and with many of the plaintiffs in their late 70's and 80's, they must hire work crews to do it; and the



permits limit the sand removal to a distance of only two and a half feet from the VCSB plaintiffs' retainingwalls.

The difficulties with the Coastal Commission and the City's claims of "good faith" with respect to permitapplications notwithstanding, the plaintiff members of "Ventura Citizens for a Safer Beach" are correctthat it is irrelevant to the injunctive relief they seek. The VCSB plaintiffs' lawsuit is founded on nuisance.Where a landowner's control of its property creates a nuisance as to its neighbor, good intentions are nodefense (Sturges v. Charles L. Harney Inc. (1958) 165 Cal.App.2d 306, 318).

Public Entities Are Subject to Liability for Nuisance

Civil Code §3479 provides in relevant part: "Anything which is... an obstruction to the free use ofproperty, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs thefree passage or use, in the customary manner of ...any public park...[or] street is a nuisance."

A public entity may be subject to liability for creating and maintaining a nuisance under Civil Code §3479(acts constituting nuisance), § 3480 (public nuisance) and §3481 (private nuisance) "even thoughengaged in a governmental activity." (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 932.)Thus, private individuals are entitled to seek injunctive relief against a municipality to abate a nuisance.(See Kempton v. City of Los Angeles (2008) 165 Cal. App. 4th 1344, at 1349) [upholding an injunction infavor of homeowners that required the city to take action to remove fences that another homeowner hadinstalled on the city's right-of-way].

The City's Inaction After1999 Created A Nuisance on the Plaintiffs' Properties

With the exception of plaintiff Ronald Wilson, none of the VCSB plaintiffs timely complied with thegovernment tort claims statute, so their claims are limited to injunctive relief. As to plaintiff Mr. Wilson,he is entitled to have the trial court consider his claim to injunctive relief even though the jury awardedhim damages against the City at the 2009 trial, since CCP §731 allows a plaintiff both to enjoin anuisance and recover damages. (See Posey v. Leavitt (1991) 229 Cal.App.3d 1236.)

In Ronald Wilson's 2009 damages case, the jury found that the City of San Buenaventura was liable forcreating a nuisance with respect to the sand. In its 5/6/09 Special Verdict answers, the jury specificallyfound that the City, by acting or failing to act, created a condition that interfered with Mr. Wilson's useand enjoyment of his Norwich Lane property; that he did not consent to that conduct; that an ordinaryperson would have been reasonably annoyed or disturbed by such conduct; that the City's conduct wasa substantial factor in causing harm to Mr. Wilson; and that the seriousness of that harm outweighed anypublic benefit from the City's conduct (Jury Verdict answers 1-6).

The Court, sitting in equity, reaches the same judgment in this injunctive relief action as did the jury atthe Wilson damages trial; and finds that all of the elements establishing a nuisance have been proven byeach of the present plaintiffs. (See CACI Jury Instruction 2021). The Court finds that, by acting or failingto act, the City of San Buenaventura created a condition on Shore Drive that obstructed and interferedwith the plaintiffs' free use and enjoyment of their properties.

The City failed to prove its denial that it "created" the sand nuisance. Local resident Mr. Henkin testifiedthat, in l991, he saw City workers, using bulldozers, artificially create the sand dunes on Shore Drive(photographic Exh. 11B.) Ronald Caulkins, a civil engineer and the City's Director of Public Works,admitted on Evidence Code §776 examination at the Wilson trial (on 4/28/09) that he signed the City's



1/3/99 letter to the Pierpont homeowners, which described Shore Drive "as a pedestrian access pathalong the beachfront" and acknowledged that "[t]he existing dunes were established by a previous sandmoving project." (Exhs. 152 and 83). The letter gave notice that the City planned to use "equipment tomove sand away from the street ends." (Ibid.)

The Court finds that the City created a nuisance on the plaintiffs' properties adjoining Shore Drive by itslack of sand maintenance after 1999. A number of witnesses testified that in the 1970's, 1980's and1990's, they saw the City use bulldozers and mechanized equipment to periodically maintain the ShoreDrive portion of the beach by grading it, removing the excess sand that had built up, and transporting thesand to Marina Park (lying immediately to the south). Public Works Director Mr. Caulkins testified thatthe last permit the City issued to itself, in 1999, to do the sand clearance work, called for its use ofmechanized equipment on the beach. (Exh. 151).

Identifying a photograph taken of the beach area adjacent to her Brockton Lane home in 8/99, plaintiffGloria Lemer pointed out that it showed the beach as fairly flat. She testified that that was how thebeach had been maintained since 1957, when she lived there as a child (photographic Exh. 4A).

Staci Kaye-Carr testified that, as of 4/09, she had lived at her Weymouth Lane residence (shown inphotographic Exh. 80) for 10-12 years. Prior to that, beginning in 1973, she had visited the house, thenowned by her father-in-law, 8 to 10 times a year. She testified that, during that time, she sawmechanized earthmoving equipment on the beach "many times." She regularly saw the workers pullsand away from the retaining walls, remove storm debris and groom the beach over Shore Drive, whichshe described as the first 40 feet of the beach.

Gloria Lemer identified a card her family received from the City Streets Superintendent Lyle Swaney in1997, wherein the City informed the adjoining homeowners that it planned to undertake the "regularmaintenance" of the Shore Drive area (Exh 37). Ms. Lemer saw that work being done until 1999.Thereafter, she testified she has seen a greatly increased buildup of sand near her property.

Plaintiff Ronald Wilson described the area in front of his house on Norwich Lane as basically flat in 1968when he moved there. He testified that winter storms would cause the sand to build up about every fiveyears. When that occurred during the years from 1968 to 1999, he observed the City's skip-loadersmaintaining the beach and knocking down the sand dunes. When the City's maintenance ceased after1999, he testified that there was an increasing buildup of sand at his property. By 2006, it was sosubstantial that he observed cracking in his retaining wall.

After the fall of 1999, when the Coastal Commission appealed the City's permit, Public Works DirectorMr. Caulkins testified that the City continued to maintain its pump stations and remove debris from thedrains on its Shore Drive "right-of-way," but admitted that the City ceased all sand removal andmaintenance on the Shore Drive strip adjoining the plaintiffs' properties.

Plaintiffs Proved a Sand Nuisance That is Damaging Their Walls and Homes

The plaintiffs proved that they have been harmed, without their consent, by the City's failure to maintainand control the sand buildup on its Shore Drive property; and that the City's inaction after 1999 has beena substantial factor in causing serious annoyance and disturbance to each plaintiff. They further provedthat the impact of the sand on their property is such that it would cause ordinary people to be reasonablyannoyed or disturbed by it.



When Mr. Wilson bought his property (in 1969), he obtained permits from the City for a 40-inch masonrywall, with four-by-four posts and a cap on top that supported plate glass. After he observed morecracking of his retaining wall from the sand buildup (shown in a 2007 photograph, Exh. 6A), Mr. Wilsonapplied to the City, on 2/17/07, for a permit to remove the sand from against his wall. The process is aslow one and his permit was not issued by the City until 8/15/07.

The City's Assistant Public Works Director Rick Raives acknowledged in his testimony that, even with apermit, the homeowners are only allowed to move the sand a limited distance from their walls; and thepermit requires sand removal by-hand (no mechanized equipment). The City permit Mr. Wilson obtained"allow(ed) for sand removal up to a maximum of 2.5 feet, cut out from the western (ocean-side) propertyline, down to the base of the wall" (Exh 39). (In contrast, the permit the City issued to itself for sandmaintenance allowed it to use skip-loaders to clear the sand 15 feet from the lane ends.)

Mr. Wilson testified that he applied for the permit in 2007, as a last resort, when the sand was up to "atleast" 8 feet and was spilling over his retaining wall. Later that year, the weight of the sand shattered thetempered glass on the top of his wall into shards and points (photographic Exh. 50). Ray Steinberg, theCity's expert at the 4/09 trial, agreed that Mr. Wilson's photographs, taken on 9/11/07 (Exh. 195) and in2/08 (Exh. 30), showed cracks in Wilson's masonry wall and spalling at the top of the wall. Mr. Steinbergcould not determine the cause, as the wall had been repaired by the time he did his inspection. Plaintiffs'consultant Phil Sherman did examine Mr. Wilson's wall at that time and testified that the "spalling"damage was caused by the sand buildup (photographic Exh. 6D).

Plaintiff Ms. Lemer testified that her family built a brick wall on the beach side of her Brockton Lanehouse in 1985. Later, they had a chain link fence installed over the brick, which raised the wall to 8 feet.Ms. Lemer's testimony and photographs showed that after the City ceased leveling and removing thesand, it has increasingly come over her fence from the sand dunes in front of her property. By the timeof the 4/09 Wilson trial, she testified that the sand dunes had risen to a height of 9-10 feet along most ofher property line and, at one point, to 12 feet (Exh. 4C, photo, taken in 2008).

Plaintiff B.J. Hanson testified that, as of the year 2000, the beach was "pretty flat" outside her BedfordCourt home. By 4/09, however, Ms. Hanson observed that the sand was overtopping her 6-foot wall.

Plaintiff Elizabeth Bauer testified that, in her 40 years living at her Woodstock Lane property, the sanddunes have never been as high. She presented photographs at the 4/09 Wilson trial showing the sandpile-up in 2009, compared to 2002 (Exh.s 2A and 2D). Starting in about 2003, she has observedincreasing mounds of wet sand, which is now causing damage to the support beams of her deck andsteps to the beach.

Plaintiff Myron Roth and his wife Stephanie live on Winthrop Lane. Mr. Roth testified that the sand hasovertopped their 8-foot high wall. The weight of the sand has caused the buckling of his garagefoundation. Plaintiff Dan Skully, also a long-time resident of Winthrop Lane, gave similar testimony ofsand buildup at his property.

Mike Biedebach, who lived on Bedford and Waterbury Lanes for years, saw equipment and bulldozersmoving sand away from the lane ends and uniformly flattening the Shore Drive pathway, from 1972 to1989, leaving only little, scattered "pocket" dunes (shown by old photographs Exhs. 7A, 7B and 7C), butno sand pile-up. The beach was readily accessible walking from the end of the lanes to the ocean. Hetestified that after the City's beach maintenance stopped, the sand buildup against the residences, laneends and stairs has gotten worse and worse. At the 4/09 Wilson trial, Mr. Biedebach described the sand



dune in front of his former Waterbury Lane house as "a mountain."

Plaintiff Rosemary Icardo purchased her home on Waterbury Lane in 1992. Before her purchase, shepersonally inspected it and had it professionally inspected, and there were no cracks. Her property hasa long, approximately 95-foot beachfront wall than ranges from a height of 6 feet high near the lane end,to 5 and 4 feet at other areas. After several years of the City's non-maintenance of Shore Drive, by2003-2004, she had sand mounds continuously "increasing in height," pressing against her wall; andshe started to observe cracks in her wall, her walkway made of concrete and brick pavers, and in thefloor inside her front door. Ms. Icardo testified that by the time of the April 2009 Wilson trial, the sandlevels in front of her home had increased to the point where the sand towered up to the second story ofher home.

The Sand Buildup Has Created Unsafe Conditions At The Ventura Beach

The VCSB plaintiffs presented substantial evidence that, after the City ceased its maintenance of ShoreDrive and the beach stairways, unsafe conditions now exist on the stairs and on the dunes looming overthe properties of the adjoining owners.

Murray Robertson, a VCSB member and longtime photographer and chronicler of Pierpont Beach,identified photographs he has taken of the area. Photographs he took in 1993 showed that the sand waslevel with the beachfront properties (e.g. photographic Exh. 8). In stark contrast, the photographs Mr.Robertson took of the homeowners' walls and of the stairwells, in April 2010, show them to beoverwhelmed by sand (see e.g. photographic Exhs. 9 through 17). The 2010 Robertson photographsshow the stairs engulfed in, and partially buried under sand and depict children on sleds, sliding downthe stairwells to the beach. Both Mr. Robertson and Ms. Icardo testified that they have lost their footingwhile decending the (Shore Drive) stairs, due to the sand buildup.

In her testimony at the injunction trial in 2011, Ms. Lemer stated that the sand outside her windows isnow piled 14-16 feet above ground. Since her wall is now hidden by sand, she expressed the worry thatbeach walkers would walk off the sand precipice and fall onto her hardscape walkway below. Mr. Wilsonstated that he has had to put up caution tape so that beachgoers will not fall off the sand dune into hisproperty. Similarly, Rosemary Icardo testified that she has had to shoo away kids boogey-boarding onthe dunes looming over her property, for fear that they will slide off onto the cement on her propertybelow.

Plaintiff William Puchlevic lives at the Zephyr Court condominiums. He testified that the fire escape doorthat leads to the beach is now completely blocked, on the beach side, by sand. Plaintiffs' expert PhilSherman testified that the wet sand topping over the Zephyr Condominiums' wall has the same weightas cement.

Another Zephyr Court resident, Frank Stitt, testified that he purchased his first floor condominium in1989 and used to see City workers using mechanized equipment to maintain the adjoining (Shore Drive)portion of the beach. When that stopped, he saw that the mounds of sand steadily increased. By thetime of the 4/09 Wilson trial, Mr. Stitt observed that the sand load against the condominium's beachfrontwall had made the iron gate to the beach unmoveable and unpassable. Mr. Stitt testified that he wrotethe City Fire Department, out of concern that the sand was blocking the condominiums' sole rear fireexit, but the City never responded.

Substantial and Unreasonable Interference with Plaintiffs' Property Enjoyment Was Proven



The Court finds and concludes that the VCSB plaintiffs proved that the City's lack of maintenance ofShore Drive since 1999 has created a sand nuisance that has seriously and substantially impacted theirresidences, the lane ends, and the public access stairways to the beach. The plaintiffs havedemonstrated by compelling evidence that, as a result of the non-action by the City, after 1999, theyhave suffered injury to their individual properties that is substantial, unreasonable and continuing. (SeePeople ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103- 1105; Pfleger v. Superior Court (1985) 172Cal.App.3d 421, 430-431; and Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 661.)

The Court finds that the seriousness of harm to the VCSB plaintiffs as well as to the beach-going publicwho access the beach from the lane ends and the stairs leading to the beach outweighs any benefit theCity may claim for not maintaining its Shore Drive right-of-way. (See Cupola v. Bay Area Rapid Transit(N.D. Cal., 1997) 5 F.Supp.2d 1078; and Caribbean Marine Services Inc. v. Baldridge (9th Cir. 1988) 844F.2d 668, 674.)

No Statutory Authority Bars Injunctive Relief for a Nuisance Caused by the City's Non-Maintenance The City contends that any nuisance that is found to exist from its lack of maintenance of Shore Drive isbarred because of the discretion accorded to public entities by sections of the Streets and HighwaysCode. It relies on Streets & Highways Code §27, which provides that the location, scope and characterof street repair work is discretionary with "the authorities charged with the maintenance thereof, takinginto consideration traffic requirements and moneys available therefor." The City also cites Gov. Code§40401 (giving discretion to legislative bodies to expend funds to maintain parks and streets); andVentura Municipal Code §355.020 (regarding the duties of the Public Works Department to maintain andclean streets, alleys and beaches). The City's primary authority for the proposition that any order by this Court with respect to sand removalor beach maintenance will impair the City's legislative prerogative and violate the separation of powersdoctrine is Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152.

The Court of Appeal in Friends of H Street determined that the plaintiffs' nuisance claims were barredbecause the action of the city was expressly authorized by statutes governing the maintenance andoperation of public streets. (Id. 20 Cal. App. 4th at 161-162). [Emphasis added.] In that case, theplaintiffs resided next to a busy thoroughfare in Sacramento. They claimed that pollution, congestionand noise caused by street traffic constituted a nuisance that interfered with their comfortable enjoymentof life (Civil Code §3479).

In its decision in Friends of H Street, the Court of Appeal observed that if the injunctive relief sought bythe plaintiffs was granted, it would "effectively compel the City to modify H Street's 'through street'designation and reduce traffic volume [which]... necessarily involves re-routing traffic from H Street toother streets or highways. [The Court of Appeal] conclude[d] the [trial] court properly determined thecity's decisions regarding the routing of traffic are a legislative function beyond [the courts'] power tocontrol." (Id. At 164-165). (See also Dina v. People ex rel. dept. of Transportation (2007) 151Cal.App.4th 1029, 1052-1053.)

Recognizing that such conditions on highways are a reality of modern life and necessarily are disturbingto all persons who live in close proximity to freeways, the California Legislature enacted Civil Code§3482, which provides immunity from liability arising from certain governmental activities, includingroad-building. Under Civil Code §3482, "[n]othing which is done or maintained under the express



authority of a statute can be deemed a nuisance."

The VCSB plaintiffs are correct that the Streets and Highways Code provisions are not applicable here.There can be no express statutory authority for street maintenance where it is undisputed that ShoreDrive is a street in origin only and where, for decades, it has had no use as a street. The City's evidenceand citation to authority fails to show that there is any express statute that would govern its activities withrespect to the Shore Drive pedestrian right-of-way in the case at bar. There is nothing in the Streetsand Highways Code provisions relied upon by the City which would absolve a public entity ofresponsibility for causing a nuisance on adjoining properties.

The City Did Not Prove Its Immunity Defenses The jury in the Ronald Wilson v. City of San Buenaventura damages trial ruled against the City on itsthree affirmative defenses: 1) that any harm the plaintiffs have sustained was caused by "a naturalcondition of unimproved public property"; 2) its "discretionary" immunity defense; and 3) its "permitimmunity" defenses (Jury Verdict questions and answers 11, 12, 13 and 14). On each of thesedefenses, the City had the burden of proof.

Under CCP §831.25(c) the City claims that it is immune from liability since the cause of the VCSBplaintiffs' property damage was "land failure," caused by "creep...and and other gradual or rapidmovement of land." On the face of this statute, the "natural condition" statutory immunity does not apply.It applies to "unimproved public property" only and requires the "land failure [to have been] caused by anatural condition of the unimproved public property" (ibid. §831.25(a).) [Emphasis added]. Here, it isclear that the City did improve Shore Drive, including after the asphalt eroded away. Over the years,City workers continued to improve Shore Drive, by undergrounding the utilities and by installing drains,manholes and pump stations.

To the extent that the City also relies on Gov. Code §40401 (which gives discretion to the legislativebody to expend funds to maintain parks and streets) and Ventura Municipal Code §355.020 (whichaddresses the duties of Public Works in maintaining and cleaning streets), these enactments are notrelevant here. The VCSB plaintiffs have not asked the Court to direct the budget or expenditures of theCity. They have sought injunctive relief from the Court, to require the City to maintain its property so asnot to cause a nuisance on the plaintiffs' adjoining property.

The City also claims discretionary immunity under Gov. Code §§ 820.2 (public entity) and 815.2 (publicemployees). Again, the City relies on a provision in Streets & Highways Code §27 that "[t]he degree andtype of maintenance for each highway, or portion thereof, shall be determined in the discretion of theauthorities charged with the maintenance thereof." Here, it becomes significant that -- as the Citymaintained throughout the trial -- Shore Drive has evolved into more of a beach than a street. It istherefore not a "degree and type of maintenance" case. The Wilson jury so found in answering "no" tothe verdict form question: "Did the City prove its 'discretionary' immunity defense?" (Verdict question 12.)This Court makes the same finding.

The case at bar is not akin to a pothole repair case. The facts of the VCSB plaintiffs' case are similar tothose asserted in Los Angeles Brick & Clay Products Co. v. City of Los Angeles (1958) 60 Cal.App.2d478, where the appellate court upheld an injunction to abate a nuisance created by the city's dischargeof storm water onto plaintiff's land. The Court of Appeal approved the trial court's order directing the cityto remove certain flood control devices and reroute its drainage systems.



Since this Court, sitting in equity on the injunctive relief claims, agrees with the jury's assessment of theCity's governmental immunity defenses, there is no Hoopes issue here. (Hoopes v. Dolan (2008) 168Cal.App.4th 146 [holding that where legal issues are tried first, a trial judge cannot ignore a jury's verdictand grant equitable relief inconsistent with the jury's findings.]

Plaintiffs Are Entitled to Injunctive Relief Against the City The Court finds and concludes that the manner in which the City has maintained and failed to maintainits Shore Drive right-of-way has deprived the plaintiff residents on Pierpont Beach and at the lane endsof the use and enjoyment of portions of their property. Applying the Christensen test, the Court finds thatthe plaintiffs are suffering and will continue to suffer irreparable harm from the sand encroachment,unless an injunction is granted.

Weighing the relative hardships, the Court finds that: the VCSB plaintiffs share no fault or responsibilityfor the sand buildup against their properties; the City has the responsibility to maintain the Shore Driveright-of-way so as not to cause a nuisance from the buildup of sand; and the plaintiffs have shown thatthey have suffered loss of enjoyment and use of their property and irreparable injury from the sandbuildup against their walls, patios and foundations, which has continued and increased since 2003.(See Christensen v. Tucker (1952) 114 Cal.App.2d 554, 562-563.)

As the VCSB plaintiffs point out, the City of San Buenaventura can escape responsibility for themaintenance of Shore Drive as a city street by merely abandoning it. (See Zacks Inc. v. City of Sausalito(2008) 165 CA4th 1163 – where, similarly, the street had not been used for many years). Californiaprovides a statutory mechanism for abandonment of any public street. (See County of San Diego v. Cal.Water & Tel. Co. (1947) 30 Cal.2d 817, 823; and Clay v. City of Los Angeles (1971) 21 Cal. App. 3d 577,587.)

It is clear, however, that the City of San Buenaventura has no interest in abandoning Shore Drive. Thisvery sandy beach area is a major recreational venue and tourist attraction for the City. The City'sDirector of Public Works Mr. Caulkins admitted at the Wilson trial, in the spring of 2009, that if the Citywere to abandon Shore Drive, its ownership and control would pass to the plaintiffs, as the abuttingproperty owners, causing the City to lose its pubic beach. Under Civil Code § 3479, the plaintiffs have established that an injunction is required to abate thenuisance. The remedy is set forth in CCP §731, providing that anyone whose property is injuriouslyaffected is entitled to an order abating it. While this Court recognizes that mandatory injunctions aresparsely granted, such an order of abatement is appropriate here, requiring the City to take action tolevel off and remove the excess sand.

A mandatory injunction under circumstances comparable to those presented by the VCSB plaintiffs herewas approved in Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720. In Sheffet, it was found thatthe County had not properly constructed a road because it lacked the proper crown and pitch to divertsurface waters in the direction intended. The trial court directed the County to take "corrective stepswithin 240 days... to prevent the said draining of surface waters onto plaintiff's land and ...in plaintiff'sditch, in excess of existing prescriptive rights." The Court of Appeal affirmed, finding that the trial courthad properly enjoined the County's "maintenance (of the street) in such a condition."

Since the Court finds that no immunity applies and the City has not acted reasonably in its maintenanceand control of its Shore Drive beach property, the Court orders the City of San Buenaventura to take



appropriate action to abate the continuing sand nuisance that its inaction has caused to the VCSBplaintiffs. (Compare Guttinger v. Calaveras Cement Co. (1951) 105 Cal.App.2d 382).

The Court grants an injunction that is limited to the facts of this case. It is within the City's authority todetermine the manner in which it will do so, but the Court finds that the City has the obligation tomaintain its Shore Drive right-of-way so as not to create a nuisance and to prevent the buildup of sandmounds and the cascade of sand that is pressing against the plaintiffs' retaining walls and flooding thepublic stairways leading to the beach. The City needs to maintain its right-of-way in such a manner thatthe sand does not build up against the plaintiffs' properties, the beach stairways and the lane ends. Thesand levels should be maintained at half the height of the lane end retaining walls and at a level belowthe plaintiff property owners' walls and homes.

Counsel for the plaintiffs, Ms.Neiswender and Mr. McDermott, shall draft a proposed injunction order forthe sand maintenance and removal, serve it on the City's attorney and present it to the Court forsignature. It shall comport with the findings in this decision.

The court's secretary is requested to serve the Court's decision on all counsel of record.

IT IS SO ORDERED.

STOLO


MINUTE ORDER DATE: 05/25/2011 Page 11 DEPT: S5 Calendar No.

ronald wilson v. city of san buenaventura

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